1. This appeal arises out of a suit instituted by the plaintiff for recovery of khas possession of certain lands. The plaintiff's case was that the lands comprised a non-transferable occupancy holding and the holding had been transferred by the previous tenants in favour of the defendants. The plaintiff, therefore, asks for khas possession. The suit was decreed in the Court of first instance. The lower Appellate Court has reversed that decision and dismissed the suit. The plaintiff has, therefore, preferred this appeal.
2. The first contention urged on behalf of the appellant is to the effect that the lower Appellate Court was in error in applying to the case the presumption contained in Clause (2) of Section 50, Bengal Tenancy Act. The suit being against a person who is said to be a purchaser of a non-transferable occupancy holding is not a suit under the Bengal Tenancy Act and it is urged that in a suit of this description the presumption to which I have referred is not applicable. That is no doubt so, but the question to be considered is as to whether the learned Judge, of the Court below has relied upon the presumption as contained in Clause (2) of Section 50 or he has not taken the facts into consideration in order to find what inferenee may legitimately be drawn from them. What the learned Judge has stated in his judgment is this. He has observed that it is well-settled that apart from the provisions of Section 50(2) it is open to the Court to draw an inference of a jote having been held at a fixed rent from the time of the Permanent Settlement from the fact of long payment of a uniform rent. He has found in his judgment that the, origin of the tenancy is not known that the two suits which were instituted for enhancing the rent of the tenancy were unsuccessful that a third suit which was instituted for ejecting them had failed that in point of fact the rental remained unchanged for over 60 years, and that the tenancy has passed from generation to generation, and upon a consideration of these circumstances he has held that the reasonable inference to be drawn is that the holding was a maurasi mokarrari raiyati. The learned Judge, therefore, did not rely upon the presumption as a necessary presumption arising under Section 50 (2), Bengal Tenancy Act, but from the fact that rent has been uniform for a long series of years taken in conjunction with the other circumstances to which I have already referred and which have been found to exist in connection with this holding he has come to the conclusion. that it was a maurasi mokarrari raiyati. It cannot, therefore, be said that the learned Judge has relied upon the presumption as contained in that section but has drawn art inference from the facts which to some extent are analogous to the presumption which arise under that section. That this is permissible has been laid down in series of cases of this Court amongst which reference may be made to the decision in the case of Pran Krishna Saha v. Mukta Sundari Dassya 21 Ind. Cas. 544 18 C.L.J. 193 where it has been laid down that in cases to which the presumption under Section 50 (2) is not applicable the Court is entitled to consider the facts in view of all the circumstances and determine whether it was not a just inference that the holding bears a fixed rental, and that there is nothing objectionable in drawing such an inference so long as the Court as does not regard itself as legally bound to apply the presumption which arises under that section. Much reliance has been placed on behalf of the appellant upon the case of Jagabandhu Saha v. Magnamoyi Dassi 33 Ind. Cas. 884 : 24 C.L.J. 363 : 44 C. 555 : 22 C.W.N. 89. All that this Court did in that case was that it refused to interfere with a decision in which the lower Appellate Court had not drawn the inference of fixity of rent from facts somewhat similar. It cannot be said that the facts in that case were exactly the same as here. A final Court of fact is competent to draw the necessary inference, provided it does not feel bound to take the presumption into account.
3. That is exactly the way in which the learned Judge has dealt with the matter, and the appellant's contention that the learned Judge has relied upon the presumption is not well-founded.
4. It is next urged that the learned Judge has been in error in not using against the defendants the admission which has been made by their predecessors the (vendors) in a previous suit which had been instituted by the plaintiff against them for ejectment--the admission having been to the effect that they were occupancy raiyats. This admission, it is said, is to be found in the statement of the cases as recited in the judgment in that suit. The learned Judge, with reference to this matter, has remarked that in order to use the admission, of the appellants-vendors the plaintiff-respondent should have proved the written; statement filed by them and without this the recital as to the statements of the facts of the case could not be used as an admission. In the view that the learned Judge has taken of this matter, I think he is right far from the statement of the respective cases of the parties in the judgment, it cannot be gathered with certainty as to what the exact nature, scope and extent of that admission was, and if the plaintiff wanted to rely upon the admission of the defendants-vendors as a piece of the evidence binding upon them it was obligatory on their part to produce the written statement in which that admission was contained. This ground, therefore, also fails.
5. The third ground urged on behalf of the appellant relates to the question of res-judicata. In the suit which the plaintiff had instituted against the vendors of the defendants for ejectment, the plaintiff alleged that he was a raiyats and that the defendants-vendors were under-raiyats, and the suit was instituted on the footing of them being under-raiyats under Section 49, Bengal Tenancy Act. In that suit it was decided that the defendants thence were not under-raiyats but occupancy raiyats. It is said that that decision operates as res judicata in the present suit on the question of the status of the defendants. The learned Judge has dealt with this matter in I his way. He has observed that the finding in the judgment that the defendants were raiyats was sufficient for the determination of the suit and if the Court proceeded to determine the class of raiyats to which they belonged and held that they were occupancy rights it was unnecessary and the decision were not res judicata to the trial of the question as to the status of the defendants in the present suit. In 'dealing with this matter from this point of view I am not sure that the learned Judge was right, for it seems to me that if both the parties invited a decision of the Court on the question as to whether the defendants in that suit were occupancy raiyats or not the decision on the question of the status of the defendants would be res judicata in a subsequent suit as between the parties or persons claiming under them. But there is another aspect of the case which has been passed before us by the learned Advocate for the respondents. He has contended that in the previous suit it was not necessary for the defendants to urge that their status was something higher than that of occupancy raiyats. The suit was one in ejectment on the footing of the defendants thence being under-raiyats and it was enough for them to show that they were not under-raiyats but had a right of occupancy. The question as to whether they were raiyats holding at fixed rent was not necessary to be urged in that suit and if it was not necessary to put forward that defence in that suit, it cannot be said that the decision in that suit on the question as to whether the defendants were raiyats at fixed rent or not cannot now be treated in the present, suit as res judicata. That one and the same person can combine in himself the status of an occupancy raiyat and a raiyat at a fixed rent cannot now be disputed in view of the decision of this Court in the case of Sarbeswar Patra v. Bijoy Chand Mahatap 63 Ind. Cas. 986 : 49 C. 280 : 34 C.L.J. 233 : C.W.N. 15 : A.I.R 1922 Cal. 287. The contrary view to be found in the dictum of Mookerjee, J., in the case of Bhutnath Naskar v. Monmotha Nath Mitra 2 Ind. Cas. 675 : 13 C.W.N. 1025 : 11 C.L.J. 98 was dissented from in that case. In the ejectment suit it was not necessary for the defendants to say anything more than that they were occupancy raiyats and the decision arrived at was to the effect that they were such raiyats. In the present suit they go further and say that not only are they occupancy raiyats but that they have been holding at fixed rent from this time of the Permanent Settlement and therefore, they are maurasi makarrari raiyats. In this view the decision in the previous suit cannot be said to operate as res judicata in the present one. This ground, therefore, also fails. All the grounds urged in support of the appeal failing, the appeal must be and is accordingly dismissed with costs.